Looking Ahead 2022: SC on Terror

The Supreme Court dealt with bail under the Unlawful Activities (Prevention) Act , 1967 (‘UAPA’) in multiple cases in 2021. The 2008 amendment to the UAPA gave the Executive untrammeled powers to counter terrorist activity. These powers have often been used to silence dissent. 

At the end of the year, the Court upheld the Bombay High Court’s order granting bail to Bhima Koregaon accused Sudha Bhardwaj, who had spent three years in jail under UAPA charges. The Court has not engaged with the constitutionality of various controversial provisions of the UAPA yet. A petition filed by two lawyers and a journalist charged for preparing and circulating a fact-finding report on the Tripura communal violence is likely to lead the Court to comment on the constitutionality of the Act in 2022. 

In November 2021, the Tripura accused challenged the constitutionality of Section 43D(5) of the UAPA, which sets out the requirements for bail. Under Section 43D(5), the Court must decide that there is no prima facie case against the accused before granting them bail. To do so, the Court can only conduct a narrow inquiry based on the National Investigative Agency’s (NIA) chargesheet— the accused is not entitled to produce any further proof of innocence. 

The Tripura accused argue that the provision is vague, gives wide powers to the NIA and has a chilling effect on free speech. Ramana J issued notice to the Union government in this case on November 17th, 2021. The case is likely to be heard early in 2022. 

A similar pair of petitions challenging the amendment to Sections 35 and 36 of the UAPA have been pending before the Court without any hearings since 2019. These provisions, in their amendment form, empower the Executive to declare individuals to be terrorists, and limits the accuseds’ right to be heard. If listed in 2022, the Court will hear arguments on whether the provisions violate fundamental rights and the principles of natural justice by giving the Executive unilateral power to declare individuals to be terrorists.